Citation Nr: 22038697 Decision Date: 07/07/22 Archive Date: 07/07/22 DOCKET NO. 20-03 310 DATE: July 7, 2022 ORDER The claim of entitlement to service connection for a right shoulder disorder is dismissed. The claim of entitlement to service connection for a left shoulder disorder is dismissed. The claim of entitlement to service connection for a neck disorder is dismissed. The claim of entitlement to service connection for hyperlipidemia is dismissed. The claim of entitlement to service connection for bilateral restless leg syndrome is dismissed. The claim of entitlement to service connection for left lower extremity radiculopathy is dismissed. Entitlement to service connection for right lower extremity radiculopathy is granted. REMANDED The claim of entitlement to a disability rating higher than 10 percent for degenerative disc disease with spondylolysis is remanded. The claim of entitlement to a compensable initial disability rating for gastroesophageal reflux disease (GERD) is remanded. The claim of entitlement to service connection for sinusitis is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for acute renal failure is remanded. The claim of entitlement to service connection for a prostate disorder is remanded. FINDINGS OF FACT 1. On March 7, 2022, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the Veteran, in the presence of his representative, that a withdrawal of the appeal regarding service connection for a right shoulder disorder is requested. 2. On March 7, 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in the presence of his representative, that a withdrawal of the appeal regarding service connection for a left shoulder disorder is requested. 3. On March 7, 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in the presence of his representative, that a withdrawal of the appeal regarding service connection for a neck disorder is requested. 4. On March 7, 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in the presence of his representative, that a withdrawal of the appeal regarding service connection for hyperlipidemia is requested. 5. On March 7, 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in the presence of his representative, that a withdrawal of the appeal regarding service connection for bilateral restless leg syndrome is requested. 6. On March 7, 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in the presence of his representative, that a withdrawal of the appeal regarding service connection for left lower extremity radiculopathy is requested. 7. The evidence indicates that right lower extremity radiculopathy is related to service-connected degenerative disc disease and spondylolysis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for a right shoulder disorder are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to service connection for a left shoulder disorder are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of entitlement to service connection for a neck disorder are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to service connection for hyperlipidemia are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim of entitlement to service connection for bilateral restless leg syndrome are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the claim of entitlement to service connection for left lower extremity radiculopathy are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for service connection for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran retired from the U.S. Air Force after active service from March 1976 to November 1997. This matter comes before the Board on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In March 2022, the Veteran testified in a hearing before the Board. A transcript is included in the electronic claims file and has been reviewed. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, during the hearing before the Board, the Veteran withdrew the appeals regarding service connection for a bilateral shoulder disorder, a neck disorder, hyperlipidemia, bilateral restless leg syndrome, and left lower extremity radiculopathy. Hence, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review these appeals. Each is therefore dismissed. Service Connection The Veteran asserts that he has radiculopathy into this right leg as the result of service-connected lumbar spine disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). When assessing disabilities, symptomatology from nonservice-connected disability should be considered symptomatology from service-connected disability in the absence of medical evidence that differentiates one from the other. In such cases, the reasonable doubt doctrine requires that all symptoms be attributed to the service-connected disability. Cf. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). A service connection finding is warranted here for the following reasons. First, the medical evidence is divided with regard to whether the Veteran has a radiculopathy disability in his right leg. A July 2018 VA examination report states that, despite complaints of radiating pain into the right leg, the Veteran did not have radiculopathy from back disability. By contrast, VA and private treatment records indicate right leg sciatica and radiculopathy. Second, the evidence indicates that the radiculopathy is due to service-connected lumbar spine disability. A June 2019 VA treatment record notes "acute" right side sciatica following laminectomy in 2017. Private treatment records dated in 2017 and 2018 repeatedly note "spinal stenosis of lumbar region with radiculopathy." In assessing this claim, the Board has also considered the Veteran's testimony before the Board. He is not competent to render medical decisions. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). But he is competent to describe observable symptoms such as shooting pain into a leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Board found the Veteran credible. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). Lumbar stenosis is noted in the private medical records as the cause of the radiculopathy. The Veteran is service connected for degenerative disc disease and for spondylolysis in the lumbar spine. He is not specifically service connected for stenosis. Nevertheless, the evidence is unclear regarding whether stenosis is part of the service-connected disability. So, the evidence does not demonstrate that right leg radiculopathy is not due to service-connected lumbar spine disability. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Remand is warranted for medical examination into the increased rating claims on appeal and into the service connection claims remaining on appeal. The most recent examinations into service-connected back and digestive disabilities were conducted nearly four years ago in 2018. Evidence dated since the examinations, including VA treatment records and the testimony before the Board, indicates the disabilities have worsened since then. See Green v. Derwinski, 1 Vet. App. 121 (1991). With regard to the claims of entitlement to service connection for a sinus disorder, hypertension, acute renal failure, and a prostate disorder: The Veteran underwent VA examination of the sinus, hypertension, and kidney claims, but comprehensive medical opinions are not included in the examination reports. Opinions should be provided because recent medical evidence notes the diagnosis of these disorders while service treatment records (STRs) document in-service problems involving blood pressure, the urinary system, and the sinuses. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Include in the claims file any outstanding VA treatment records, the most recent of which are dated in December 2019. 2. Schedule a VA examination of thoracolumbar disability and related radiculopathy. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should issue a report detailing the nature and severity of these disabilities. With regard to back disability, ensure that any limited motion during flare ups and after repeated use over time is addressed. 3. Schedule a VA examination of GERD. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should issue a report detailing the nature and severity of this disability. 4. Schedule a VA examination into the sinus claim. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a) Does the Veteran have sinusitis? (b) If so, is it approximately at least as likely as not (i.e., probability of approximately 50 percent or more) that a sinus disorder had its onset in service or is related to a disease, event, or injury during service? In answering this question, address the STRs documenting sinus problems in service. For example, dental records indicate that the Veteran underwent surgery in the early 1980s. In several subsequent STRs, complaints of sinus problems are noted. Note moreover that the Veteran's upper respiratory system was evaluated as normal when he entered service in 1976. 5. Schedule a VA examination into the hypertension claim. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a) Is it approximately at least as likely as not (i.e., probability of approximately 50 percent or more) that hypertension had its onset in service or is related to a disease, event, or injury during service? In answering this question, note the high blood pressure readings recorded throughout service. (b) If the answer to (a) is negative, is it approximately at least as likely as not that hypertension is due to or caused by service-connected disability (e.g., renal calculus or renal failure, if it is found service connected)? In answering this question, note the repeated references in the STRs to the issue of whether elevated blood pressure relates to kidney stones. (c) If the answers to (a) and (b) are negative, is it approximately at least as likely as not that hypertension has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). 6. Schedule a VA examination into the renal failure claim. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a) Is it approximately at least as likely as not (i.e., probability of approximately 50 percent or more) that renal failure had its onset in service or is related to a disease, event, or injury during service? In answering this question, note the high blood pressure readings recorded during service and note the treatment during service of service-connected kidney stones. (b) If the answer to (a) is negative, is it approximately at least as likely as not that renal failure is due to or caused by service-connected disability (e.g., kidney stones or hypertension, if it is found service connected)? (c) If the answers to (a) and (b) are negative, is it approximately at least as likely as not that renal failure has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). 7. Schedule a VA examination into the prostate claim. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a) Is it approximately at least as likely as not (i.e., probability of approximately 50 percent or more) that a prostate disorder had its onset in service or is related to a disease, event, or injury during service? In answering this question, note the frequent treatment during service of urinary problems (e.g., service-connected kidney stones) and lower pelvic pain, and the STR in September 1994 noting "probable prostatitis." (b) If the answer to (a) is negative, is it approximately at least as likely as not that a prostate disorder is due to or caused by service-connected disability (e.g., renal calculus or renal failure if it is found service connected)? (c) If the answers to (a) and (b) are negative, is it approximately at least as likely as not that a prostate disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). 8. To each examiner: In rendering the requested reports, each examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology such as pain. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.